Verizon: net neutrality violates our free speech rights

Verizon pressed its argument against the Federal Communications Commission's new network neutrality rules on Monday; filing a legal brief with the United States Court of Appeals for the DC Circuit. The company argued the FCC's rules not only exceeded the agency's regulatory authority, but also violated network owners' constitutional rights. Specifically, Verizon believes that the FCC is threatening its First Amendment right to freedom of speech and its property rights under the Fifth Amendment.

"The Commission points to a hodgepodge of provisions to support its claim of 'broad authority,'" Verizon writes. However, the firm says, the FCC "does not and could not suggest that any of these provisions expressly authorizes these rules." Indeed, Verizon notes, "since 2006, at least 11 pieces of 'net neutrality' legislation were introduced and debated in Congress. None were enacted."

Editorial discretion

But Verizon believes that even if Congress had authorized network neutrality regulations, those regulations would be unconstitutional under the First Amendment. "Broadband networks are the modern-day microphone by which their owners [e.g. Verizon] engage in First Amendment speech," Verizon writes.

Verizon believes that it's entitled to the same kind of control over the content that flows through its network as newspaper editors exercise over what appears in their papers. That includes the right to prioritize its own content, or those of its partners, over other Internet traffic.

"Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, they nonetheless possess discretion that these rules preclude them from exercising," Verizon writes. "The FCC’s concern that broadband providers will differentiate among various content presumes that they will exercise editorial discretion."

Verizon points to a 1994 case in which the Supreme Court ruled that regulations requiring cable television providers to carry broadcast television channels triggered First Amendment scrutiny. By the same token, Verizon says, network neutrality rules trigger First Amendment concerns by restricting broadband providers' rights to allocate more bandwidth to some content than to others.

Electronic invasion

That's not all. Verizon also believes the FCC's rules violate the Fifth Amendment's protections for private property rights. Verizon argues that the rules amount to "government compulsion to turn over [network owners'] private property for use by others without compensation."

The Fifth Amendment prohibits the taking of private property without compensation. According to Verizon, network neutrality rules are "the equivalent of a permanent easement on private broadband networks for the use of others without just compensation."

Verizon also notes "providers have invested billions in broadband infrastructure on the understanding that they can manage access to network facilities and use those facilities to offer the products that their customers want." By frustrating that expectation, Verizon argues, the FCC has effectively engaged in a "regulatory taking" of broadband providers' property.

These arguments suggest that Verizon is digging in its heels against the regulation of its network. If the courts rule that the FCC has exceeded its authority under telecommunications laws, Congress could respond by changing the law to explicitly authorize network neutrality regulations. But if the courts accept Verizon's constitutional arguments, then imposing network neutrality rules on the nation's broadband carriers could require a constitutional amendment.

Still, the courts haven't always been sympathetic to this type of argument. After it ruled that must-carry rules raise First Amendment issues in 1994, the Supreme Court sent the case back down to the lower courts for further consideration of the case. The lower courts ultimately decided that the regulations passed muster under the First Amendment. That ruling was later affirmed by the Supreme Court in 1997.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

Verizon also believes the FCC's rules violate the Fifth Amendment's protections for private property rights. Verizon argues that the rules amount to "government compulsion to turn over [network owners'] private property for use by others without compensation."

Sounds like a carbon copy of Conservative talking points.

This isn't private property sitting around being used for recreation by the Verizon family, it's commercial activity, and inherently inter-state in virtually all cases.

This is bull. Newspapers do not provide a service by which its readers communicate with each other, they provide a service of one-way communication to its readers; newspapers are NOT analogous to broadband service providers.

Tough titties VZW - if you hadn't worked/colluded with so many other networks to essentially monopolize whole cities at a time, network neutrality likely wouldn't have even become an issue. You helped make the bed...

Contrary to legal precedent, corporations are NOT people. They cannot vote. They cannot be drafted into the military. They have no inherent right to Free Speech. Even with their allowance of speech, Free Speech is not absolute. It is regulated even in countries that cherish Free Speech.

Corporations operate under restrictions to the benefit of society. Free and open internet encourages free speech. Verizon is claiming their free speech is more important than any of their customers. They should be called out on this anti-consumer position.

Verizon also notes "providers have invested billions in broadband infrastructure on the understanding that they can manage access to network facilities and use those facilities to offer the products that their customers want."

Like Netflix, YouTube, and other streaming services that directly compete with Verizon's FiOS?

I agree with Verzion. It's Verizon's network, their property, they should set the rules. It's government regulation that allowed these monopolies to form. The answer isn't more regulation, it's more competition that would allow someone to choose a different ISP should Verizon implement restrictive polices.

This could be an interesting study in the absurdity of granting constitutional protections intended for people to a meta-person, in this case a company.

1) Who is Verizon? 2) How is this regulation stiffling that 'speech'?3) If this goes through, how much longer before every company has a RIGHT to do whatever it is it does because not letting them do so will violate their 5th Amendment rights?

I like how they're ignoring a massive section of what their network is, and only focusing on one aspect of it in order to get what will ultimately be a phyrric victory if they win, because that argument will then apply to all the networks they interface with, and the property rights of every user of their network which will NOT be able to be controlled with a non-contractual TOS, and will hence open Verizon up to massive litigation if it's upheld.

"Broadband networks are the modern-day microphone by which their owners [e.g. Verizon] engage in First Amendment speech," says the company fighting tooth and nail to prevent municipalities from offering their own broadband access.

I agree with Verzion. It's Verizon's network, their property, they should set the rules. It's government regulation that allowed these monopolies to form. The answer isn't more regulation, it's more competition that would allow someone to choose a different ISP should Verizon implement restrictive polices.

The problem is when there is no competition, or very little competition. The free market generally works only when there are many smaller actors and no single entity can control the market. You can't setup a veritable monopoly and then expect it to behave efficiently.

The crappy thing is that Verizon thinks that when I visit a website/video service like Neflix, that that site/etc is getting a free ride to my phone. Which, I would say if they did, yes, Verizon would be entitled to be able to do what they wanted with that content. But, each of those websites and services have to pay for THEIR internet provider as well. So, basically Verizon is saying that they have the right to screw with the speeds of services and sites that have already paid for their internet connection. So, they are saying that even though those content providers have paid a fee for getting service, they have to pay again so that Verizon gets a bigger cut. This really is not how this is supposed to work.

If Verizon didn't have a local monopoly in most areas of business (negotiating with the government for such monopoly) and if they didn't have access to private land (hey, those easements were convenient when they get access), and if they didn't just say they can trample anyone else's free speech since it is over their lines (i.e. they have free reign to censor) and if the internet were not a public resource (funded by the government) they might have a point.

But at this point they are also saying that they can decide to censor your phone calls, and disconnect you when you say something they don't like. Bad mojo man.

So basically Verizon's new marketing strategy is: Can you hear me now? Good, all your interwebs are belonging to us!

I mean you have GOT to be kidding me ... So Verizon is saying is it has the right to violate everyone's freedom of speech because net neutrality violates its freedom of speech? Really?

And let me get this right ... According to Verizon our internet connection is actually a newspaper that they ALLOW us to view content on ... content they don't own and never published on sites that they don't run ...

The problem is when there is no competition, or very little competition. The free market generally works only when there are many smaller actors and no single entity can control the market. You can't setup a veritable monopoly and then expect it to behave efficiently.

You're 100% right, but it was government regulation that allowed these monopolies to form in the first place. More government regulation will only create new problems or exacerbate existing ones. Open up the market and Verizon would have tough time selling these polices to their customers.

Tough titties VZW - if you hadn't worked/colluded with so many other networks to essentially monopolize whole cities at a time, network neutrality likely wouldn't have even become an issue. You helped make the bed...

FoO has it right.

The 1st and 5th amendment arguments are not, by themselves, totally off-the-wall; they would be correct for many other companies. It's not enough to just say "phaaww, we know the Constitution doesn't mean that this time" - there has to be an actual counter-argument.

I have two:

* ISPs are in the business of selling access to the whole internet, people might sign up for "editorialised" cable TV, but they sign up (and pay) for the open internet. Fine print on page 203 in your terms of service should not be enough to overturn that deal.

* As FoO says, these companies are in effect the sole providers of access. Whether by natural processes or dodgy practices (or both), they've become monopoly providers of a public service. Oops.

I don't know if those two points add up to a defense of Net Neutrality (in fact, I don't know what Net Neutrality is in detail). But I the idea that your ISP can act like a newspaper editor is frankly terrifying.

Contrary to legal precedent, corporations are NOT people. They cannot vote. They cannot be drafted into the military. They have no inherent right to Free Speech. Even with their allowance of speech, Free Speech is not absolute. It is regulated even in countries that cherish Free Speech.

I think it's more that Verizon is in the business of helping people (and corporations) communicate with each other and not in the business of communicating.

The rights of corporations involved in communicating, like those that produce TV programs or newspapers, are highly protected.

The problem is when there is no competition, or very little competition. The free market generally works only when there are many smaller actors and no single entity can control the market. You can't setup a veritable monopoly and then expect it to behave efficiently.

You're 100% right, but it was government regulation that allowed these monopolies to form in the first place. More government regulation will only create new problems or exacerbate existing ones. Open up the market and Verizon would have tough time selling these polices to their customers.

Verizon also believes the FCC's rules violate the Fifth Amendment's protections for private property rights. Verizon argues that the rules amount to "government compulsion to turn over [network owners'] private property for use by others without compensation."

Sounds like a carbon copy of Conservative talking points.

This isn't private property sitting around being used for recreation by the Verizon family, it's commercial activity, and inherently inter-state in virtually all cases.

The right/left paradigm doesn't play into this at all. It is merely a flimsy at-best argument. I find it rather amusing that companies with a legislatively enabled oligopoly should whine about their private property rights, especially the "without compensation" part. That was some big time lulz.

But why should this surprise anyone? This is the same company that boldly argued that throttling wireless speeds and capping our data usage meant that they could provide better service!

"Verizon believes that it's entitled to the same kind of control over the content that flows through its network as newspaper editors exercise over what appears in their papers. That includes the right to prioritize its own content, or those of its partners, over other Internet traffic."

Doesn't hold water. I can buy any newspaper in the country that I want. Not so with broadband access. In some places, Verizon is all you've got. So the government CAN and SHOULD make sure you guys play fair.

Well, so long as Verizon stops claiming to be an "Internet Service Provider", and clearly notes on which services they choose to execute their 1A rights, either by not allowing access or by reducing access.

I say we let them have their wish, but their forfeit all infrastructure that is over public land(including wireless frequencies). Because they want to censor, they must take ALL legal responsibility for any communications over their network and may not pass on the burden to the end user(think copyright infringement).

Verizon just made a compelling case for public/municipal internet. They don't have a right to lay wires in the ground, they get to do it because we said it was okay with certain restrictions/obligations.

I wish they would just classify broadband as a utility and be done with all this BS

Agreed. Though I would take it even further; Broadband should be a dumb pipe utility; Content creators, providers and distributors should not be allowed to be the same entity due to conflicts of interest.

I'm sorry, but Verizon is not very good at analogies. As someone previously posted, they can not be synonymous with newspapers because newspapers are a one-way tool. Not to mention that they are passing more than just the written word on the Internet. I would say that the analogy is closer to the Internet being the roadways in this country and Verizon is but a DMV overseeing a certain portion of the roadways. DMV doesn't make the laws of the road, and they definitely aren't the ones that enforce them. Therefore, I would say that Verizon needs to step back and reassess the situation. They are overstepping their bounds.

I agree with Verzion. It's Verizon's network, their property, they should set the rules. It's government regulation that allowed these monopolies to form. The answer isn't more regulation, it's more competition that would allow someone to choose a different ISP should Verizon implement restrictive polices.

If customers were able to make a meaningful choice between ISPs, I would agree with you. Currently that is not the case. There is not nearly enough choice in wireless and wired IPv4 and IPv6 providers, and the cost of switching from one to another is unreasonably high due to shenanigans. The main problem is that the barrier to entry for a new provider is too high, but there are other factors too.

The regulators should either (as you implied) work to increase competition or regulate the behaviors of the few "competing" companies. Until they choose and implement one of these solutions we have a problem.